SANTHA and others v. KUNJITTY and KAREEM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931** **RSA.NO. 29 OF 2004()** **--------------------------------** **AS.121/2000 OF DISTRICT COURT, THRISSUR OS.543/1993 OF ADDL.SUB COURT, THRISSUR** **....................** ## **APPELLANTS – RESPONDENT NOS.1 TO 3 & 6 DEFENDANT NOS.1 TO 3 AND 6:** **--------------------------------------------------------------** **1. SANTHA, S/O.CHERASSERY VASU AND D/O.ALLIPARAMBIL KUNJUMON, VALLIVATTOM VILLAGE, AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2. NAFEESA,D/O.KUZHIKANDATHIL KUNJUMUHAMMED W/O.POOVATHUMKADAVIL ALI, VALLIVATTOM VILLAGE, MUKUNDAPURM TLUK, THRISSUR DISTRICT.** **3. SAFIYA, D/O.POOVATHUMKADAVIL ALI, VALLIVATTOM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **4. JAMEELA, W/O.KALLATHUPADI KAREEM, D/O.POOVATHUMKADAVIL ALI, ERIYAD VILLAGE, KODUNGALLOOR TALUK, THRISSUR DISTRICT.** **5. VALSALA, W/O.PUZHKARA, CHALAPATTASSERY HOUSE, VALLIVATTOM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.M.C.GOPI** ## **RESPONDENT(S) – APPELLANTS & 2[ND] RESPONDENT PLAINTIFF AND 2[ND] DEFENDANT:** **-------------------------------------------------------------------------** **1. KUNJITTY, S/O.ERUMAKKATTUPARAMBIL KANDA PAINGODE DESOM VALLIVATTOM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **2. KAREEM, S/O.RAYAMARAKKAR VEETTIL, KOCHUMON, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **ADV. SRI.C.CHANDRASEKHARAN FOR R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.3.2010 ALONG WITH RSA NO. 43 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J. ================================= R.S.A. NO.29 & 43 of 2004 ================================= Dated this the 19[th] day of March, 2010** ## **J U D G M E N T** Substantial question of law framed for a decision in these Second Appeals is whether first appellate court was justified in reversing finding of the trial court with regard to the plea of adverse possession and limitation, adverse to the relevant evidence relied on by the trial court. 2. Dispute concerned 9.482 cents in Sy.No.34/3 of Vallivattom Village. Plaintiff in O.S. No.543 of 1993 claimed that it formed part of 1.1 acres belonging to him as per Exts.A1, A2 and A10 and comprised in Sy.No.34/3. The said 1.1 acres is described as A schedule in the plaint in O.S. No.543 of 1993. Plaint B schedule therein is 86 cents which according to the plaintiff belonged to the defendants (plaintiffs in O.S. No.364 of 1994) comprised in Sy.No.34/5 and 6 and situated on the south of plaint A schedule. According to the plaintiff taking advantage of absence of a permanent boundary between the properties of himself and defendants, the latter trespassed into ## **R.S.A. Nos.29 & 42 of 2004** ## -: 2 :- a portion of plaint A schedule on 10.8.1992 and reduced that portion to their possession which is described as C schedule. Hence plaintiff sought for recovery of possession of C schedule on the strength of title and for fixation of boundary. Defendants contended that plaintiff has no title over plaint C schedule and that plaintiff has also no title over 1.1 acres described as plaint A schedule. Predecessor of defendants had 92 cents of land which was subjected to partition as per Ext.A1 in the year 1974. At the time of partition, before and thereafter properties were separated by a Mattom on north of the property of the defendants. It is also their case that as per the custom also Mattom on the north side belongs to the owner of property on the southern side. Further plea is that they have perfected title by adverse possession and limitation. Defendants (in O.S. No.543 of 1993) filed O.S. No.364 of 1994 seeking decree for prohibitory injunction in respect of 96.5 cents. That suit is resisted by the plaintiff (in O.S. No.543 of 1993) on the strength of title and alleged trespass on 10.8.1992 consequent to which suit for recovery of possession (O.S. No.543 of 1993) was filed. Trial court after evidence -: 3 :- ## **R.S.A. Nos.29 & 42 of 2004** found that plaintiff has title over C schedule but he lost the same on account of adverse possession and limitation. Accordingly O.S. No.543 of 1993 was dismissed and O.S. No.364 of 1994 was decreed. First appellate court confirmed finding of the trial court as to title of the plaintiff over plaint C schedule but reversed the finding regarding adverse possession and limitation and accordingly granted a decree as prayed for in O.S. No.543 of 1993. Consequently O.S. No.364 of 1994 ended in dismissal. That common judgment and decree are under challenge in these Second Appeals, R.S.A. No.29 of 2004 arising from judgment and decree in A.S. No.121 of 2000 and R.S.A. No.43 of 2004 arising from the judgment and decree in A.S. No.122 of 2000. It is contended by learned counsel for appellants/defendant Nos.1 to 3 and 6 in O.S. No.543 of 1993 (plaintiff Nos.1 to 3 and 6 in O.S. No.364 of 1994) that finding of the first appellate court regarding adverse possession and limitation cannot be sustained in law or on facts. Counsel for respondents would support the judgment and decree of the first appellate court. 3. For convenience parties are referred to as plaintiff -: 4 :- ## **R.S.A. Nos.29 & 42 of 2004** and defendants in O.S. No.543 of 1993 that being the leading case in which evidence was recorded by the trial court. So far as the title of respondent No.1/plaintiff concerning the disputed C schedule therein is concerned courts below found in his favour and no substantial question of law has been framed in these appeals concerning that. Exhibits A1, A2 and A10 are documents of title relied on by respondent No.1. Though total extent of land belonging to the predecessor-in-interest was 1.32½ acres, subject matter of the suit is only 1.1 acres comprised in Sy.No.34/3, a portion of which according to respondent No.1 is plaint C schedule allegedly trespassed upon by the appellants/defendants. Exhibits C2 and C2(a) are the report and plan prepared by the Advocate Commissioner. Commissioner has measured the properties with reference to the relevant documents and stated that though a portion of total extent of 1.30½ acres falls in Sy.No.34/4 also, reported that the said 1.30½ acres is covered by Exts.A1, A2 and A10 relied on by respondent No.1. Now dispute is concerning 1.1 acres which has been identified and located in Ext.C2(a) as comprised in Sy.No.34/3 and according to the Advocate ## **R.S.A. Nos.29 & 42 of 2004** ## -: 5 :- Commissioner disputed C schedule formed part of the 1.1 acres described as plaint A schedule. No attempt was made to discredit Ext.C2 and C2(a). In the circumstances finding of the courts below that title of plaint C schedule vested with the respondent does also involve any substantial question of law so far as these Second Appeals are concerned. 4. The only substantial question of law framed for a decision is whether finding of the first appellate court regarding adverse possession and limitation in reversal of the finding of the trial court is legally correct? Learned counsel for the appellants has strenuously contended that first appellate court was not correct on law or on facts in reversing the finding. Learned counsel invited my attention to Ext.C2 and the evidence of D.W.5 (Advocate Commissioner). It is also contended by learned counsel that respondent though filed a suit in the year 1992 alleging trespass on 10.8.1992 for about five years no attempt was made to take out a commission to prove the alleged trespass and the Advocate Commissioner who prepared Exts.C1 and C2 visited the properties on 20.10.1997 and 24.11.1997. Learned counsel for the -: 6 :- ## **R.S.A. Nos.29 & 42 of 2004** appellants placed heavy reliance on Ext.C3 and evidence of D.Ws.1 to 5 to contend that appellants have been in possession of plaint C schedule even beyond the statutory period preceding the institution of O.S. No.543 of 1993. Learned counsel for respondent No.1 would contend that there is no reliable evidence to show that appellants had been in possession of C schedule before 10.8.1992. 5. Exhibit A4 is the prior document relied on by the appellants which is of the year 1120 M.E. Indisputably, total extent of land referred to therein is 86 cents. Then comes Ext.A9, partition deed of the year 1974 where extent of the property is stated as 92½ cents. Of the 92½ cents, C schedule therein was allotted to appellant No.1 while A and B schedules were allotted to the sister of appellant No.1 and another portion was assigned to appellants Nos.2 to 6. It is in Ext.A9, partition deed of the year 1974 that for the first time total extent of land is stated as 92½ cents. Respondent No.1 has produced Ext.A3 dated 25.7.1990 receipt for payment of revenue for 1.1 acres (including the disputed C schedule) in Sy.No.34/3. On the other hand appellants have not produced -: 7 :- ## **R.S.A. Nos.29 & 42 of 2004** any receipt for payment of revenue for any portion of the land belonging to them not to say for the disputed C schedule. Then what remained is the evidence of D.Ws.1 to 5 and Ext.C3. D.W.1 is appellant No.1 and necessarily spoke to her case. D.W.2 is appellant No.2, one of the assignee from the sister of appellant No.1 in the year 1992 and the first appellate court found that D.W.2 is not competent to speak about possession of plaint C schedule property before the assignment to her. What remained is evidence of D.Ws.3 to 5 and Ext.C3. In Ext.C3, D.W.5 (Advocate Commissioner) has stated that towards northern portion of the property of appellants he found a Mattom with a few screw-pines aged 5 to 20 years and a few gliceridia plants aged 5-6 years. In the property of appellants (i.e., south of the said Mattom) according to D.W.5 adjoining the boundary there were ten coconut trees aged 3540 years and two coconut seedlings aged about 3 years. There were also gonna trees aged about 10 years and two tamarind trees aged about aged 20 years. So far as gonna and tamarind trees are concerned Learned District Judge observed that possibility of the same sprouting up without involvement of -: 8 :- ## **R.S.A. Nos.29 & 42 of 2004** human agency cannot be ruled out. Then what remained is the Mattom, screw-pines and the coconut trees on the south of the Mattom. So far as the coconut trees are concerned Learned District Judge has noted from Ext.C3 itself that in the property belonging to respondent No.1 also there were similarly aged coconut trees and therefore from the mere fact that a few old coconut trees even adjoining the Mattom in the possession of the appellants were seen no inference of adverse possession could be drawn. Then what remained is the screw-pines on the disputed Mattom. D.W.5, the Advocate Commissioner has not stated the width or height of the Mattom. There is also no evidence as to the oldness of the Mattom. Advocate Commissioner has not mentioned anything about the same in Ext.C3. It is true that the coconut tree climber has given evidence that he has been plucking coconut for respondent No.1 as well as the appellants. Appellants had properties on either side of the Mattom. That evidence does not carry weight as on both sides of the Mattom similarly aged coconut trees were found. Learned District Judge observed that it was not a properly maintained fence by planting screw- -: 9 :- ## **R.S.A. Nos.29 & 42 of 2004** pines from which an inference regarding separate possession upto its oldness (20 years) can be drawn. After all assessment of oldness of screw-pines made by the Commissioner is only on a rough estimation. Based on that alone possession for the statutory period cannot be accepted. One can understand if appellants had produced even a single receipt for payment of revenue for 92½ cents including the disputed C schedule for any period prior to 1992. Appellant No.1 has a case that respondent No.1 was also present at the time when property of the appellants were measured in the year 1974 and partition was effected as per Ext.A9. But that is not admitted by respondent No.1 when examined as P.W.1. 6. When recovery of possession on the strength of title is claimed and title is found in favour only defence is adverse possession. Burden squarely lies on the person who claims adverse possession. The Supreme Court in ## **P.T.Munichikkanna Reddy and Others v.** **Revamma and Others** (2007) 6 SCC 59) has opined that right to property is a human right and that court must bear that in mind while considering plea of adverse possession and -: 10 :- ## **R.S.A. Nos.29 & 42 of 2004** limitation. First appellate court has stated that evidence let in by the appellants is not sufficient to prove that they have been in possession of the property adverse to respondent No.1 with necessary hostile animus. As such the there is no reason to interfere with the finding entered by the first appellate court on adverse possession and limitation. The substantial question of law raised is answered accordingly. Second Appeals are dismissed. No costs. Interlocutory Application No.67 in R.S.A. No.29 of 2004 and I.A. No.105 of 2004 in R.S.A. No.43 of 2004 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv